by Neil Gibson

In Washington, DC, the end of September saw Mayor Vincent Gray rendered helpless before a provision of DC’s statutory code, which foiled Gray’s attempt to fill out membership of the city’s  Board of Elections and Ethics.

In short, “civic activist” Dorothy Brizill, DC’s unofficial “government watchdog,” exposed the failure of Gray’s appointee for Board Chair to meet the residency requirement of the Board of Elections and Ethics statute. The statute calls for all Elections Board members to have lived in the city for three consecutive years, but the appointee, Robert Mallett, only moved to DC from New York City in May, 2010. With Gray already enduring corruption allegations and a recent flap concerning improper vetting of an executive appointee, he cut ties with Mallett soon after the problem arose, and is currently searching for a replacement.

Though there is no arguing the letter of the residency law, the absurdity of its application here rivals the District government’s apparent ignorance of its own legislative code. True, Mallett lived in New York from 2001-2010. But before heading north, he had been a DC resident for seventeen years. While a DC resident, Mallet served as Deputy Mayor, Deputy Secretary of the US Department of Commerce, an adjunct professor at the Georgetown Law Center… and the list of his high-profile DC-centric activities goes on.

Commentators have characterized the incident as further evidence of Mayor Gray’s embattled administration’s woes. But it is worth asking instead why DC maintains the “three-year rule.” City Council member Mary Cheh, who reaffirmed the three-year rule in her work to amend the District’s Election Code in 2009, explained the provision as a means of ensuring that members of the Elections Board have a “connection, of a firm and substantial nature, with the District.” In light of the Mallett controversy, the irony born of her explanation is inescapable. Her attempt to ensure civic commitment has functioned to hold from the Elections Board a candidate with nearly twenty years of professional legal and political experience in Washington, including a stint as deputy mayor.

Of course, a snarky few found it “ironic” that Mallett, as Chair of the Elections and Ethics Board, would oversee compliance of rules akin to that which he would have skirted to gain appointment in the first place. Such reasoning is for those oblivious to the forest. Questions of the three-year rule’s merit aside, it was short-sighted for DC officials to construe that law so narrowly, thereby ignoring its spirit and denying Mallett an exception.

Ultimately, the Mallett example reveals the potential of the three-year rule to foreclose committed and well-qualified candidates from involvement with DC’s Board of Elections and Ethics. By insisting on an extended period of District residency in the immediate past, the rule ignores not only the transitory nature of Washington’s populace, but also, and more importantly, the intense prior commitment to the city of a candidate such as Mallett. Moreover, though recent residency in DC is an understandable expectation of a local political appointee, review of Election Board members’ duties does not reveal a need for board members to have lived in the city for three years prior to appointment.

In particular, the board’s broader duty is to, “enfranchise eligible residents, conduct elections, and assure the integrity of the electoral process,” a mission “mandated by federal and local statutes.” Granted, complete unfamiliarity with DC politics, its election system, and its election statutes would likely be a disadvantage. But it is absurd to suggest that Mallett would have been unacceptably ignorant of DC ways.

One could counter, of course, that Mallett, with his long DC history, is more the exception than the rule–that the three-year requirement is effective on balance at keeping out appointees uninterested in the city’s welfare. This is to ignore, however, the potential functioning of that law to hamstring a mayor who believes he or she has found the best person for the job. Moreover, whether Mallett is an exception or not, so long as the three-year rule is in place, there will always be legal grounds to reject such a qualified candidate, regardless of that person’s merits. The rule assumes that the best person for the job will always be one who has lived in the city for at least the three years prior to appointment. This assumption is assuredly wrongheaded.

To abide by its mandate is to insist that a relatively new face with a fresh perspective, a person not sullied by the oft-alleged cronyism of municipal politics in the District, could not effectively oversee the ethical administration of elections in Washington. It is to say that, somehow, one year in the District, or even two-and-a-half, is not enough time for gifted professionals with legal backgrounds to grasp and appreciate the mechanics and value of local elections.

One might at this point reference the mayoral race in Chicago of early 2011, where the Illinois Supreme Court overlooked Rahm Emmanuel’s lack of physical presence in the city over the prior year to determine that despite a one-year residency mandate, Emmanuel’s Chicago roots, prior Chicago residency, and evident appreciation for the city were largely sufficient to save his mayoral candidacy from legal challenge. In the end, if Washington’s City Council wants effective and ethical oversight of elections, their apparent insistence on holding hard and fast to the three-year rule is to unreasonably withhold options from the city that it would otherwise be well-advised to consider.

Neil Gibson is a third-year student at William & Mary Law.

permalink: http://electls.blogs.wm.edu/2012/02/27/dc-appointments/

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